Peros v Irons

Federal Court of Australia|2024-08-13|Before: Ms P, Derrington J

Pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), proceeding QUD 515 of 2023 be transferred to the Supreme Court of Queensland.
The applicant pay the respondent's costs of the interlocutory application filed on 16 February 2024.
Any remaining costs of the proceeding up to the date of transfer be each party's costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Overview 1 By an interlocutory application filed on 16 February 2024, Mr Isaac Irons, the respondent in defamation proceedings, seeks an order pursuant to r 27.21 of the Federal Court Rules 2011 (Cth) and s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act) that the proceeding be transferred to the Supreme Court of Queensland. 2 On 2 February 2024, orders were made with respect to the filing of that interlocutory application and any materials in support. Relevantly, it was ordered that: (a) the applicant, Mr John Peros, could file any material (including written submissions) in response to the application (if he wished to do so) by 1 March 2024; and (b) the application would be determined without an oral hearing unless either party notified the Court in their written submissions that they sought an oral hearing. 3 Mr Irons filed the application and material in support on 16 February 2024. Mr Peros did not file any material in response by 1 March 2024, or at all. Neither party notified the Court that they required an oral hearing. 4 For the reasons that follow, it is in the interests of justice that the proceeding be transferred to, and determined by, the Supreme Court of Queensland.

Background and the present proceeding 5 Mr Peros has brought defamation proceedings in this Court against Mr Irons. Mr Irons is a journalism student who assisted Mr Hedley Thomas, a journalist, and "The Australian", a newspaper published by Nationwide News Pty Ltd (Nationwide News), to produce an investigative podcast entitled, "Shandee's Story" (the Podcast). As part of his employment with Nationwide News, Mr Irons is one of three administrators of a "Facebook Group" entitled, "Shandee's Story Podcast Official Discussion Group". 6 The Podcast concerns the murder of Ms Shandee Blackburn on 9 February 2013. It comprises 20 episodes published variously between 14 October 2021 and 16 June 2022. 7 Mr Peros was charged with Shandee Blackburn's murder in 2014, but was acquitted of that charge in 2017 following a trial in the Supreme Court of Queensland. 8 In 2019, an extensive coronial investigation was conducted into Shandee Blackburn's death. In 2020, the Central Coroner of the Coroner's Court of Queensland issued his decision and reasons, in which he made certain findings about her death. He found that Shandee Blackburn died due to injuries sustained in an incident involving violence with Mr Peros who used a bladed instrument. Following the release of that decision, the Podcast was produced, and various content relating to it was widely published. 9 In his statement of claim against Mr Irons in the present proceeding, Mr Peros complains about certain publications alleged to have occurred within the Shandee's Story Podcast Official Discussion Group. 10 The first matter complained of relates to a post made by Mr Irons on or about 15 December 2022 entitled, "Shandee Blackburn murder suspect John Pero's [sic] DNA to…". The matter of which Mr Peros complains is a response to that post made by another Facebook user. It read: Craig Eberhardt's argument against "The Australian's" podcast just won't wash. "The Teacher's Pet" by Hedley Thomas has set the precedent for uncovering the truth and sentencing the real criminals. I'm waiting for the day Peros goes to jail which will be justice for Shandee. Everyone knows he did it. We are in good hands with people like Ian Harrison who sentenced Chris Dawson to 24 years jail and Water Sofronoff who led the Commission of Enquiry into QLD Forensics. All of which wouldn't have been made possible without two remarkable individuals, Hedley Thomas and Dr Kirsty Wright. The podcasts have served to restore my faith in the fact that at some point justice will be served 11 It is alleged that the imputations from this are that Mr Peros is a murderer, in that he murdered Shandee Blackburn, and that he is a dangerous criminal, such that he should be in gaol. 12 The second matter complained of relates to a response made by another Facebook user to a different post on the Facebook Group. It stated: John has a huge sense of entitlement. As well as being an egotistical narcissist. I wonder if Poppy would want her daughter dating a man like her brother? 13 It is alleged that a number of imputations arise from that statement, including that Mr Peros suffers from a personality disorder, in that he is egotistical and a narcissist, and that Mr Peros is not a person whom someone's daughter should date, because he is a narcissist and egotistical. 14 By the interlocutory application filed on 16 February 2024, Mr Irons seeks that the proceeding be transferred to the Supreme Court of Queensland pursuant to s 5(4) of the Cross-vesting Act. That provision empowers this Court to transfer proceedings which appear to arise out of, or are related to, another proceeding pending in a State Supreme Court, and where it is considered more appropriate that the proceeding be determined by that Supreme Court. Here, it is said that the present proceeding is related to a defamation proceeding brought by Mr Peros against other parties in connection with the publication of the Podcast in the Supreme Court of Queensland. That proceeding is briefly summarised below.

The proceeding in the Supreme Court of Queensland 15 On 12 August 2022, Mr Peros commenced defamation proceedings in the Supreme Court of Western Australia against Nationwide News, Mr Thomas and Ms Shannah Blackburn. 16 On 8 May 2023, that proceeding was transferred, by consent, to the Supreme Court of Queensland (the QSC Proceeding). 17 In short, Mr Peros alleges that he was defamed by the publication of episode 13 of the Podcast. He pleads that the matters complained of conveyed, in substance, an imputation that he murdered Shandee Blackburn. 18 On 5 February 2024, the defendants in the QSC Proceeding filed an interlocutory application seeking the early determination of the serious harm element of Mr Peros' cause of action and the dismissal of the action. The application was allowed and, recently, the hearing on serious harm occurred and judgment was reserved. 19 The defendants to the QSC Proceeding have the same legal representation as Mr Irons in the proceeding in this Court (which, for convenience, will be referred to as the "FCA Proceeding"). If the matter proceeds to trial, the defendants intend to plead, amongst other things, a defence of justification, along with a public interest defence pursuant to s 29A of the Defamation Act 2005 (Qld) (Defamation Act). Mr Irons' solicitor has stated that Mr Irons intends to defend the FCA Proceeding in the same way. 20 It is undoubted that any trial of these issues would occupy several weeks. In relation to the QSC Proceeding, there may be a jury trial, though that is yet to be determined.

Applicable principles 21 The assessment as to whether or not a proceeding should be transferred under the Cross-vesting Act calls for a 'nuts and bolts' management decision as to which court, in the pursuit of the interests of justice, is more appropriate to hear and determine the substantive dispute: BHP Billiton Ltd v Schultz (2004) 221 CLR 400, 420 - 421 [13] (BHP v Schultz), citing Bankinvest AG v Seabrook (1988) 14 NSWLR 711, 713 - 714. If it appears to the Court that it is in the interests of justice that the proceeding be determined by another court, there is a statutory requirement to exercise the power of transfer: BHP v Schultz at 421 [14]. 22 There is no presumption in favour of or against any party and no party carries any onus: Amalia Investments Ltd v Virgtel Global Networks NV (No 2) (2011) 198 FCR 248, 256 [40] (Amalia Investments); Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2022] FCA 1515 [12] (Civil & Civic). Broadly speaking, the Court is required to decide "where the balance lies in properly serving the interests of justice in each case": Civil & Civic [12], citing Amalia Investments at 255 [34]. 23 For the purposes of s 5(4)(b)(i) of the Cross-vesting Act, two proceedings are related if they are "associated or connected", such as where a substantial common question arises in both proceedings, or where the facts and circumstances in the two proceedings appear to be intertwined: see Civil & Civic [13]; Amalia Investments at 256 [41] and the authorities cited therein. 24 For the purposes of ss 5(4)(b)(ii)(D) and (iii), the factors that will generally be relevant to determining whether a transfer is in the interests of justice are: the stage of proceedings for each; the commonality or diversity of the parties; the nature of the proceedings; the commonality or diversity of the issues; the risk of conflicting findings of fact or conflicting orders; a cost benefit analysis; the potential unnecessary drain on judicial and other public and private resources; and whether there is any particular judicial expertise residing in one court or the other: Civil & Civic [14].

Should the proceeding be transferred? 25 It is more appropriate, and in the interests of justice, that the FCA Proceeding be transferred to the Supreme Court of Queensland. The primary circumstances that weigh in favour of transfer are as follows. 26 First, it can hardly be doubted that the FCA Proceeding is similar to, or related to, the QSC Proceeding. Substantial common questions arise in both proceedings, and the facts and circumstances raised in each of the two proceedings are intertwined. In the QSC Proceeding, Mr Peros alleges the conveyance of defamatory imputations from statements made in the Podcast. In the FCA Proceeding, he alleges the conveyance of defamatory imputations from statements made on a Facebook Group about the Podcast. In each proceeding, Mr Peros has pleaded what is substantially the same central defamatory imputation: that he murdered Shandee Blackburn. As mentioned, Mr Irons and the defendants in the QSC Proceeding all intend to raise a defence of justification in respect of that imputation, as well as a public interest defence pursuant to s 29A of the Defamation Act. A trial of these matters in each proceeding will require the determination of the same, or substantially similar, issues of fact and law. 27 It would, undoubtedly, be of benefit if those questions were determined together. The fact that the FCA Proceeding raises additional imputations (referred to above) which are not in issue in the QSC Proceeding does not indicate that the matter should not be transferred. A determination of these additional imputations is likely to occupy less time in comparison to the determination of the imputation that Mr Peros murdered Shandee Blackburn and, as was submitted on behalf of Mr Irons, is far less likely to bear substantively on the overall result. 28 Secondly, in addition to there being a commonality of subject matter, there is a commonality of parties. The two proceedings involve the same claimant, Mr Peros, and he has the same legal representatives in each. The first defendant in the QSC Proceeding is the employer of Mr Irons, and the second defendant is another employee of Nationwide News. Mr Irons has the same legal representatives and counsel in the FCA Proceeding as all the defendants in the QSC Proceeding. 29 Thirdly, if the proceedings are able to be heard together, there will be considerable costs savings for all parties. As mentioned, each trial would occupy many weeks, and Mr Conor O'Beirne, the solicitor for Mr Irons, deposed that he and the defendants in the QSC Proceeding might call up to sixty witnesses in support of their case. Whilst the consolidation, or the concurrent case management and hearing of both proceedings, is a matter to be determined by the Supreme Court upon transfer, having regard to the commonality of issues and the commonality of witnesses that might be called in each proceeding, it is in the interests of justice that there at least be an opportunity for the proceedings to be heard together. 30 Fourthly, the risk of conflicting findings of fact and conflicting orders weighs in favour of a transfer. In particular, there is a serious risk of inconsistent findings in respect of the defence of justification to the alleged imputation that Mr Peros murdered Shandee Blackburn. It was submitted that a very large number of witnesses who gave statements to police and were called to give evidence in the coronial inquiry may be called in respect of the defences of justification. Having regard to the nature of the evidence that is likely to be led in support of that defence, it is likely that its determination will involve the assessment of the credit of those witnesses and the drawing of inferences. It is undesirable for the same evidence to be assessed by two different courts. If both proceedings were case managed and disposed of within the one court system, it would reduce the prospect of witnesses having to give evidence more than once, and avoid the risk of inconsistent findings and the potential for multiple appeals in different jurisdictions. 31 Further, if the defendants in the QSC Proceeding were to elect for a trial by jury, the risk of conflicting findings would be compounded by the fact that there will be differently constituted tribunals of fact determining the defence. As an aside, it is also not irrelevant to the consideration that a jury trial would be more readily available in the Supreme Court of Queensland: Shields v Williams [2019] FCA 413 [8]. 32 Fifthly, the potential for a significant drain on judicial resources in the event the proceeding is not transferred weighs in favour of making the order sought. Given the likely length of the trial and the number of witnesses that might be called, it would be an unnecessary drain on court resources were this Court and the Supreme Court of Queensland required to separately hear and determine the common questions which arise in the proceedings. 33 Finally, the QSC Proceeding was commenced 15 months prior to the FCA Proceeding. It appears likely that the question of serious harm in the former proceeding will be determined in the near future. The outcome of that question will undoubtedly have some impact on the FCA Proceeding and, in those circumstances, the FCA Proceeding would be best dealt with by the Supreme Court. Mr Irons' solicitor deposed that he intends to file an application to strike out Mr Peros' statement of claim, and that, following the determination of the present application to transfer the proceedings, he intends to make an application for the early determination of the question of serious harm under ss 10A(4) and 10A(5) of the Defamation Act. The FCA Proceeding, however, is at an embryonic stage. Nothing has occurred in this proceeding aside from the determination of the present application. 34 It is difficult to identify any particular reason why the proceeding ought to remain in this Court, other than the fact that it was commenced here. Mr Peros' non-opposition to the application supports the conclusion that the interests of justice weigh in favour of transferring the proceeding. 35 The result is that the proceeding (numbered QUD 515 of 2023) shall be transferred to the Supreme Court of Queensland. The only issue which remains to be determined is in respect of costs.

Costs 36 Mr Irons has succeeded on his application to transfer the proceeding. He submitted that, in the event the proceeding was transferred without the consent of Mr Peros, he should have his costs of the application. If Mr Peros had consented, on the other hand, he accepted that costs should be in the cause. Although it is noted that Mr Peros did not actively oppose the application, it is appropriate to order that he pay Mr Irons' costs of the transfer application. 37 By the interlocutory application, however, Mr Irons appeared to seek a more extensive order that his costs incurred in the proceeding to date be paid by Mr Peros. There is nothing to justify making that order, and no submissions were made in support of it. In circumstances where Mr Peros had the right to bring this proceeding in the court of his choice, and the ultimate justice of the case is not yet known, the only appropriate order with respect to any remaining costs in the proceeding up to the date of transfer is that they be each party's costs in the cause. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington.

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